[Federal Register Volume 67, Number 47 (Monday, March 11, 2002)]
[Rules and Regulations]
[Pages 10827-10830]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-5368]



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  Federal Register / Vol. 67, No. 47 / Monday, March 11, 2002 / Rules 
and Regulations  

[[Page 10827]]



DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Parts 900 and 1200

[AMS-02-001]


Rules of Practice

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: The Agricultural Marketing Service (AMS) of the United States 
Department of Agriculture (USDA) is amending the Rules of Practice 
Governing Proceedings on Petitions To Modify or To Be Exempted From 
Marketing Orders and the Rules of Practice Governing Proceedings on 
Petitions To Modify or To Be Exempted From Research, Promotion and 
Education Programs. AMS also is amending the Rules of Practice and 
Procedure Governing Proceedings To Formulate Marketing Agreements and 
Marketing Orders and the Rules of Practice and Procedure Governing 
Proceedings To Formulate and Amend an Order.
    This final rule amends the Rules of Practice Governing Proceedings 
on Petitions To Modify or To Be Exempted From Marketing Orders and the 
Rules of Practice Governing Proceedings on Petitions To Modify or To Be 
Exempted From Research, Promotion and Education Programs: To provide 
that transcripts and exhibits do not have to be kept on file in the 
Office of the Hearing Clerk during the active status of a proceeding; 
to provide that transcripts may be obtained at the cost of duplication; 
to provide that the date of filing an appeal petition is the date the 
appeal petition is filed with the Hearing Clerk; to eliminate the 
postmark as an effective date of filing documents or papers; to provide 
that when the time for filing a document or paper expires on a 
Saturday, the time allowed for filing the document or paper shall be 
extended to include the following business day; and to provide that the 
time for filing a motion to dismiss or an answer is within 30 days 
after the service of the petition.
    This rule also amends the Rules of Practice and Procedure Governing 
Proceedings To Formulate Marketing Agreements and Marketing Orders and 
the Rules of Practice and Procedure Governing Proceedings To Formulate 
and Amend an Order to provide that: Transcripts may be obtained at the 
cost of duplication; to eliminate the postmark as an effective date of 
filing documents or papers; to provide that when the time for filing a 
document or paper expires on a Saturday, the time allowed for filing 
the document or paper shall be extended to include the following 
business day.
    AMS also is making a number of minor and non-substantive changes 
for clarity and uniformity of style.
    These amendments are necessary in order to expedite proceedings and 
save the United States and those who participate in the proceedings 
time and money.

EFFECTIVE DATE: March 11, 2002.

FOR FURTHER INFORMATION CONTACT: Martha Ransom, Chief, Research and 
Promotion Branch, F&V, AMS, USDA, Stop 0244, 1400 Independence Avenue, 
SW, Room 2535-S, Washington, DC 20250-0244, telephone (202) 720-9915, 
fax (202) 205-2800, e-mail [email protected].

SUPPLEMENTARY INFORMATION:

Background

Availability of Transcripts and Evidence

    Section 900.60(f)(1) of the Rules of Practice Governing Proceedings 
on Petitions To Modify or To Be Exempted From Marketing Orders (7 CFR 
900.60(f)(1)) and section 1200.52(d) of the Rules of Practice Governing 
Proceedings on Petitions To Modify or To Be Exempted From Research, 
Promotion and Education Programs (7 CFR 1200.52(d)), by cross-reference 
to section 900.60(f)(1), provide that during the period in which 
proceedings under the Rules of Practice Governing Proceedings on 
Petitions To Modify or To Be Exempted From Marketing Orders (7 CFR 
900.50 through 900.71) and proceedings under the Rules of Practice 
Governing Proceedings on Petitions To Modify or To Be Exempted From 
Research, Promotion and Education Programs (7 CFR 1200.50 through 
1200.52) have an active status, the transcripts and exhibits shall be 
kept on file in the Office of the Hearing Clerk, where they shall be 
available for examination during official hours of business. 
Thereafter, the transcripts and exhibits shall be made available by the 
Hearing Clerk for examination during official hours of business after 
prior request and reasonable notice to the Hearing Clerk. AMS is 
removing this provision. During the ``active status'' of these 
litigation proceedings, it is impracticable to keep the transcripts and 
exhibits on file in the Office of the Hearing Clerk during official 
hours of business because they are used by administrative law judges to 
prepare the initial decisions and by the Judicial Officer to prepare 
final decisions.
    AMS also is amending section 900.60(f)(2) of the Rules of Practice 
Governing Proceedings on Petitions To Modify or To Be Exempted From 
Marketing Orders (7 CFR 900.60(f)(2)); section 1200.52(d) of the Rules 
of Practice Governing Proceedings on Petitions To Modify or To Be 
Exempted From Research, Promotion and Education Programs (7 CFR 
1200.52(d)), by cross-reference to section 900.60(f)(2); section 
900.11(b) of the Rules of Practice and Procedure Governing Proceedings 
To Formulate Marketing Agreements and Marketing Orders (7 CFR 
900.11(b)); and section 1200.12(b) of the Rules of Practice and 
Procedure Governing Proceedings To Formulate and Amend an Order (7 CFR 
1200.12(b)). All of these sections provide that if a personal copy of a 
transcript is desired, the copy may be obtained on written application 
filed with the reporter and upon payment of any fees. These sections 
are not consistent with section 11 of the Federal Advisory Committee 
Act (5 U.S.C. app. at 6 (2000)) which requires that agencies make 
copies of transcripts of agency proceedings available to any person at 
actual cost of duplication. Therefore, AMS is amending these sections 
to provide that transcripts of proceedings shall be made available to 
any person at actual cost of duplication.

[[Page 10828]]

Transmission of Appeal Petitions

    Section 900.65(a) of the Rules of Practice Governing Proceedings on 
Petitions To Modify or To Be Exempted From Marketing Orders (7 CFR 
900.65(a)) and section 1200.52(d) of the Rules of Practice Governing 
Proceedings on Petitions To Modify or To Be Exempted From Research, 
Promotion and Education Programs (7 CFR 1200.52(d)), by cross-reference 
to section 900.65(a), provide that an appeal from an administrative law 
judge's initial decision must be transmitted to the Hearing Clerk 
within 30 days after service of the initial decision. AMS is amending 
this provision to require that appeal petitions must be filed with the 
Hearing Clerk within 30 days after service of the initial decision. 
This amendment is necessary because, depending upon the method of 
transmission, the date of transmission may be difficult to discern; 
whereas documents filed with the Hearing Clerk are stamped with the 
date and time of filing.

Effective Date of Filing

    AMS is amending section 900.69(d) of the Rules of Practice 
Governing Proceedings on Petitions To Modify or To Be Exempted From 
Marketing Orders (7 CFR 900.69(d)); section 1200.52(d) of the Rules of 
Practice Governing Proceedings on Petitions To Modify or To Be Exempted 
From Research, Promotion and Education Programs (7 CFR 1200.52(d)), by 
cross-reference to section 900.69(d); section 900.15(c) of the Rules of 
Practice and Procedure Governing Proceedings To Formulate Marketing 
Agreements and Marketing Orders (7 CFR 900.15(c)); and section 
1200.17(c) of the Rules of Practice and Procedure Governing Proceedings 
To Formulate and Amend an Order (7 CFR 1200.17(c)). All of these 
sections provide that any document or paper, except a petition, shall 
be deemed to have been filed when it is postmarked or received by the 
Hearing Clerk. AMS is amending this provision to provide that a 
document or paper will only be deemed to be filed when it is received 
by the Hearing Clerk. Under the current provision, a document or paper 
which has a timely postmark is timely-filed even if the document or 
paper is received by the Hearing Clerk after the time for filing. The 
use of the postmark to determine timeliness causes uncertainty. The 
Hearing Clerk must wait for days after a document or paper is required 
to be filed before notifying the other parties, the administrative law 
judge, or the Judicial Officer that a document or paper has not been 
timely-filed. Moreover, at least theoretically, the Hearing Clerk can 
never be absolutely certain that a document or paper is not timely 
because the Hearing Clerk may never receive a document or paper with a 
timely postmark. Therefore, in order to provide certainty and a single 
method for determining the effective date of filing, we are eliminating 
the provision under which documents or papers are deemed to be filed 
when postmarked. Any party who believes that he or she has not been 
allowed sufficient time for a document or paper to be received by the 
Hearing Clerk may move for an extension of time for filing the document 
or paper.

Computation of Time for Filing

    AMS is amending section 900.69(e) of the Rules of Practice 
Governing Proceedings on Petitions To Modify or To Be Exempted From 
Marketing Orders (7 CFR 900.69(e)); section1200.52(d) of the Rules of 
Practice Governing Proceedings on Petitions To Modify or To Be Exempted 
From Research, Promotion and Education Programs (7 CFR 1200.52(d)), by 
cross-reference to section 900.69(e); section 900.15(d) of the Rules of 
Practice and Procedure Governing Proceedings To Formulate Marketing 
Agreements and Marketing Orders (7 CFR 900.15(d)); and section 
1200.17(d) of the Rules of Practice and Procedure Governing Proceedings 
To Formulate and Amend an Order (7 CFR 1200.17(d)). All of these 
sections provide that Sundays and Federal holidays shall be included in 
computing time allowed for filing any document or paper, and that when 
the time for filing expires on a Sunday or Federal holiday, the time 
for filing shall be extended to include the next following business 
day. AMS is amending these sections to make it clear that each day, 
including Saturdays, Sundays, and legal public holidays, is included in 
computing time allowed for filing any document or paper. Further, 
because the Hearing Clerk's office is now closed on Saturdays, we are 
amending these sections to provide that when the time for filing a 
document or paper expires on a Saturday, the time allowed for filing 
the document or paper shall be extended to include the following 
business day.

Time for Filing a Motion To Dismiss or Answer

    AMS is amending sections 900.52(c)(1) (7 CFR 900.52(c)(1)) and 
900.52a(a) (7 CFR 900.52a(a)) of the Rules of Practice Governing 
Proceedings on Petitions To Modify or To Be Exempted From Marketing 
Orders and section 1200.52(c) (7 CFR 1200.52(c)) and section 1200.52(d) 
(7 CFR 1200.52(d)) of the Rules of Practice Governing Proceedings on 
Petitions To Modify or To Be Exempted From Research, Promotion and 
Education Programs, by cross-reference to section 900.52a(a). These 
sections provide that the Administrator may file a motion to dismiss or 
an answer within 30 days after the filing of a petition. AMS is 
amending these provisions to provide that the AMS Administrator may 
file a motion to dismiss or an answer within 30 days after the service 
of the petition. Under the current provisions, there is no way to 
determine with certainty when the petition is received by the 
Administrator from the Hearing Clerk's office. Theoretically, under the 
current provisions, the Administrator can receive the petition from the 
Hearing Clerk's office after the 30-day period to file a motion to 
dismiss or an answer has elapsed. Therefore, in order to provide 
certainty and to ensure that the Administrator receives the petition in 
sufficient time to file a motion to dismiss or an answer, we are 
amending these provisions to provide that a motion to dismiss or an 
answer may be filed within 30 days after the service of the petition.

Minor and Non-substantive Changes

    AMS also is making a number of minor and non-substantive changes. 
Specifically, AMS is: (1) Correcting an incorrect cross-reference in 7 
CFR 900.51(j); (2) making editorial changes in 7 CFR 900.2(d), 7 CFR 
900.51(d), 7 CFR 900.51(o), 7 CFR 900.52(b), 7 CFR 900.52(c)(2), 7 CFR 
900.52a(a), 7 CFR 900.62(c), 7 CFR 900.64, 7 CFR 900.68, 7 CFR 
900.70(a), 7 CFR 1200.2(e), and 7 CFR 1200.51(e) for clarity, to 
correct typographical errors, and for uniformity of style; (3) 
eliminating gender-specific references in 7 CFR 900.2(c), 7 CFR 
900.2(e), 7 CFR 900.51(c), 7 CFR 900.51(e), and 7 CFR 900.52(c)(1); (4) 
eliminating the following provisions which have been reserved, 7 CFR 
900.2(f), 7 CFR 900.51(f), 7 CFR 900.51(n), and 7 CFR 900.60(e); and 
(5) eliminating the definition of the Federal Register in 7 CFR 
900.51(g) which is not used in the Rules of Practice Governing 
Proceedings or Petitions To Modify or To Be Exempted From Marketing 
Orders.
    This rule amends provisions of the rules of practice governing the 
conduct of certain proceedings under Marketing Agreements and Orders, 
and under Research, Promotion, and Education Programs. Therefore, 
pursuant to section 553 of the Administrative Procedure Act (APA), 5 
U.S.C. 553, it is exempt from the APA's notice and comment

[[Page 10829]]

requirements. In addition, this rule is exempt from the requirements of 
the Regulatory Flexibility Act, 5 U.S.C. 601 et seq.

Executive Orders 12866 and 12988

    This rule has been determined to be not significant for purposes of 
Executive Order 12866 and, therefore, has not been reviewed by OMB.
    This rule has been reviewed under Executive Order 12988, Civil 
Justice Reform. This rule is not intended to have retroactive effect. 
This rule will not preempt any State or local laws, regulations, or 
policies, unless they present an irreconcilable conflict with this 
rule. There are no administrative proceedings which must be exhausted 
before parties may file suit in court challenging this rule.

Paperwork Reduction Act

    This rule contains no information collection or recordkeeping 
requirements under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 
et seq.).

List of Subjects

7 CFR Part 900

    Administrative practice and procedure, Freedom of information, 
Marketing agreements, Reporting and recordkeeping requirements.

7 CFR Part 1200

    Administrative practice and procedure, Blueberries, Cotton, Dairy, 
Eggs, Fluid milk, Honey, Marketing agreements, Mushrooms, Peanuts, 
Popcorn, Pork, Potatoes, Soybeans, Watermelons.

    For the reasons stated in the preamble, 7 CFR parts 900 and 1200 
are amended as follows:

PART 900--GENERAL REGULATIONS

Subpart--Rules of Practice and Procedure Governing Procedures on 
Petitions To Formulate Marketing Agreement and Marketing Orders

    1. The authority citation for Subpart--Rules of Practice and 
Procedure Governing Proceedings on Petitions To Formulate Marketing 
Agreements and Marketing Orders is revised to read as follows:

    Authority: 7 U.S.C. 610.

    2. Amend Sec. 900.2 as follows:
    a. Paragraph (c) is amended by removing the words ``in his stead'' 
and adding the words ``for the Secretary'' in their place.
    b. Paragraph (d) is amended by removing the words ``terms 
Administrative Law Judge or Judge'' and adding the words ``term judge'' 
in their place.
    c. Paragraph (e) is revised to read as set forth below.
    d. Paragraph (f) is removed.


Sec. 900.2  Definitions.

* * * * *
    (e) The term Administrator means the Administrator of the 
Agricultural Marketing Service or any officer or employee of the 
Department to whom authority has been delegated or may hereafter be 
delegated to act for the Administrator.
* * * * *

    3. In Sec. 900.11, paragraph (b) is revised to read as follows:


Sec. 900.11  Copies of the transcript.

* * * * *
    (b) Transcripts of hearings shall be made available to any person 
at actual cost of duplication.

    4. In Sec. 900.15, paragraphs (c) and (d) are revised to read as 
follows:


Sec. 900.15  Filing; extensions of time; effective date of filing; and 
computation of time.

* * * * *
    (c) Effective date of filing. Any document or paper required or 
authorized in this subpart to be filed shall be deemed to be filed at 
the time it is received by the Hearing Clerk.
    (d) Computation of time. Each day, including Saturdays, Sundays, 
and legal public holidays, shall be included in computing the time 
allowed for filing any document or paper: Provided, That when the time 
for filing a document or paper expires on a Saturday, Sunday, or legal 
public holiday, the time allowed for filing the document or paper shall 
be extended to include the following business day.

Subpart--Rules of Practice Governing Procedures on Petitions To 
Modify or To Be Exempted From Marketing Orders

    5. The authority citation for Subpart--Rules of Practice Governing 
Proceedings on Petitions To Modify or To Be Exempted From Marketing 
Orders is revised to read as follows:

    Authority: 7 U.S.C. 608c.


    6. Amend Sec. 900.51 as follows:
    a. Paragraph (c) is amended by removing the words ``in his stead'' 
and adding the words ``for the Secretary'' in their place.
    b. Paragraph (d) is amended by removing the words ``terms 
administrative law judge or'' and adding the word ``term'' in their 
place.
    c. Paragraph (e) is revised to read as set forth below.
    d. Paragraph (j) is revised to read as set forth below.
    e. Paragraph (o) is amended by removing the word ``rules'' and 
adding the word ``rulings'' in its place.


Sec. 900.51  Definitions.

* * * * *
    (e) The term Administrator means the Administrator of the 
Agricultural Marketing Service or any officer or employee of the 
Department to whom authority has been delegated or may hereafter be 
delegated to act for the Administrator.
* * * * *
    (j) The term proceeding means a proceeding before the Secretary 
arising under section 8c(15)(A) of the Act.
* * * * *


Sec. 900.52  [Amended]

    7. Amend Sec. 900.52 as follows:
    a. Paragraphs (b)(2), (b)(3), and (b)(4) are amended by adding the 
word ``marketing'' immediately after the words ``provisions of the''.
    b. Paragraph (c)(1) is amended by removing the word ``he'' and 
adding the words ``the Administrator'' in its place; by removing the 
words ``the filing'' and adding the words ``the service'' in their 
place; and by removing the word ``his''.
    c. In paragraph (c)(2), the paragraph heading is amended by 
removing the words ``Administrative Law'' and adding the word ``the'' 
in their place.


Sec. 900.52a  [Amended]

    8. In Sec. 900.52a, paragraph (a) is amended by removing the words 
``the filing'' and adding the words ``the service'' in their place, and 
by removing the words ``administrative law judge'' and adding the word 
``Judge'' in their place.

    9. Amend Sec. 900.60 as follows:
    a. Remove paragraph (e).
    b. Redesignate paragraph (f) as paragraph (e) and revise newly 
designated paragraph (e) to read as follows.


Sec. 900.60  Oral hearings before judge.

* * * * *
    (e) Transcript. Transcripts of hearings shall be made available to 
any person at actual cost of duplication.


Sec. 900.62  [Amended]

    10. In Sec. 900.62, paragraph (c), the second sentence is amended 
by removing the word ``postoffice'' and adding the words ``post 
office'' in its place.

[[Page 10830]]

Sec. 900.64  [Amended]

    11. Amend Sec. 900.64 as follows:
    a. The section heading is amended by removing the words 
``Administrative Law''.
    b. Paragraph heading (c) is amended by removing the words 
``Administrative Law''.


Sec. 900.65  [Amended]

    12. In Sec. 900.65, paragraph (a), the first sentence is amended by 
removing the words ``by transmitting an appeal petition to the hearing 
clerk'' and adding the words ``by filing an appeal petition with the 
Hearing Clerk'' in their place.


Sec. 900.68  [Amended]

    13. Amend Sec. 900.68 as follows:
    a. In Sec. 900.68, the section heading is amended by removing the 
word ``Applications'' and adding the word ``Petitions'' in its place.
    b. In paragraph (a)(1), the first sentence is amended by removing 
the words ``An application'' and adding the words ``A petition'' in 
their place.

    14. In Sec. 900.69, paragraphs (d) and (e) are revised to read as 
follows:


Sec. 900.69  Filing; service; extensions of time; effective date of 
filing; and computation of time.

* * * * *
    (d) Effective date of filing. Any document or paper required or 
authorized in this subpart to be filed shall be deemed to be filed at 
the time it is received by the Hearing Clerk.
    (e) Computation of time. Each day, including Saturdays, Sundays, 
and legal public holidays, shall be included in computing the time 
allowed for filing any document or paper: Provided, That when the time 
for filing a document or paper expires on a Saturday, Sunday, or legal 
public holiday, the time allowed for filing the document or paper shall 
be extended to include the following business day.


Sec. 900.70  [Amended]

    15. In Sec. 900.70, paragraph (a) is amended by removing the word 
``or'' immediately after the word ``Secretary'' and adding the word 
``for'' in its place.
* * * * *

PART 1200--RULES OF PRACTICE AND PROCEDURE GOVERNING PROCEEDINGS 
UNDER RESEARCH, PROMOTION, AND EDUCATION PROGRAMS

    16. The authority citation for part 1200 is revised to read as 
follows:

    Authority: 7 U.S.C. 2111, 2620, 2713, 4509, 4609, 4814, 4909, 
6106, 6306, 6410, 7418, and 7486.


    17. Amend Sec. 1200.2 as follows:
    a. Paragraph (a) is amended by removing the following references, 
``the Floral Research and Consumer Information Act, Pub. L. 97-98, 97th 
Cong., approved December 22, 1981, 7 U.S.C. 4301-4319;'' and ``the 
Wheat and Wheat Foods Research and Nutrition Education Act, Pub. L. 95-
113, 95th Cong., approved September 29, 1977, 7 U.S.C. 3401-3417;''.
    b. Paragraph (e) is revised to read as set forth below.


Sec. 1200.2  Definitions.

* * * * *
    (e) The term Administrator means the Administrator of the 
Agricultural Marketing Service or any officer or employee of the 
Department to whom authority has been delegated or may hereafter be 
delegated to act for the Administrator.
* * * * *

    18. In Sec. 1200.12, paragraph (b) is revised to read as follows:


Sec. 1200.12  Copies of the transcript.

* * * * *
    (b) Transcripts of hearings shall be made available to any person 
at actual cost of duplication.

    19. In Sec. 1200.17, paragraphs (c) and (d) are revised as follows:


Sec. 1200.17  Filing, extension of time, effective date of filing, and 
computation of time.

* * * * *
    (c) Effective date of filing. Any document or paper required or 
authorized in this subpart to be filed shall be deemed to be filed at 
the time it is received by the Hearing Clerk.
    (d) Computation of time. Each day, including Saturdays, Sundays, 
and legal public holidays, shall be included in computing the time 
allowed for filing any document or paper: Provided, That when the time 
for filing a document or paper expires on a Saturday, Sunday, or legal 
public holiday, the time allowed for filing the document or paper shall 
be extended to include the following business day.

    20. In Sec. 1200.51, paragraph (e) is revised to read as set forth 
below.


Sec. 1200.51  Definitions.

* * * * *
    (e) The term Administrator means the Administrator of the 
Agricultural Marketing Service or any officer or employee of the 
Department to whom authority has been delegated or may hereafter be 
delegated to act for the Administrator.
* * * * *


Sec. 1200.52  [Amended]

    21. In Sec. 1200.52, paragraph (c) is amended by removing the words 
``the filing'' and adding the words ``the service'' in their place.

    Dated: March 1, 2002.
A.J. Yates,
Administrator, Agricultural Marketing Service.
[FR Doc. 02-5368 Filed 3-8-02; 8:45 am]
BILLING CODE 3410-02-P